HASHEM v. HUNTERDON COUNTY et al

Filing 80

ORDER granting in part and denying in part 68 Motion for judicial relief; denying 78 Motion to Compel. No later than 30 days from the date of this Order Defendants are directed to produce unredacted versions of documents previously produced th at relate to (1) complaints made by students and/or parents about Plaintiff; and (2) "witness statements" or incident reports in which the names students and/or parents appear; the unredacted names may be designated Attorneys Eyes Only pursuant to the Discovery Confidentiality Order and counsel are directed to submit a joint status report to the COurt no later than 6/15/2018. Signed by Magistrate Judge Douglas E. Arpert on 5/23/2018. (mmh)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
SIREEN HASHEM,
Plaintiff,
v.
HUNTERDON COUNTY, et al.
Defendants.

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: Civil Action No. 15-8585 (FLW)(DEA)
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:
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MEMORANDUM OPINION
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& ORDER
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ARPERT, Magistrate Judge.
This matter comes before the Court on two motions by Plaintiff Sireen Sawalha Hashem
(“Plaintiff”) to compel discovery. This is an employment action in which Plaintiff alleges that her
former employer, Hunterdon Central Regional High School Board of Education, and her former
supervisors discriminated against her on the basis of her race, religion, and national origin.
Plaintiff asks the Court to compel Defendants to produce (1) unredacted versions of discovery
responses in which student/parent names have been removed; (2) an index to Defendants’
supplemental document production; (3) personnel records/complaints relating individual
defendants and a third party; (4) documents relating to “Plaintiff’s comparators”; and (5) records
relating to certain students.
A. Redaction of Student/Parent Names
On January 25, 2017, the Court entered a Discovery Confidentiality Order. See ECF No.
56. Pursuant to Paragraph 8 of that Order, all discovery responses containing “the names of parents
of students or students who attended Hunterdon Central Regional High School shall be redacted so
that only the first initial of such person’s first and last name are evident, as required by The Family
Educational Rights and Privacy Act (FERPA) (20 U.S.C. § 1232g; 34 CFR Part 99) and NJAC 6A:

-7.1, et seq.” Id. At the time the Court entered the Order, the Court advised the parties that, if
necessary, they could jointly or individually move for an Order allowing for the disclosure of the
parent/student names. Pursuant to that instruction, Plaintiff now brings the instant motion.
Plaintiff served three requests for the production of documents on Defendants. Among
other things, Plaintiff sought documents relating to (1) the involvement of a student and his parents
in a particular Facebook post regarding Plaintiff [Document Requests Nos. 116 – 121]; (2) any
complaints or communications made by parents or students about Plaintiff or her teaching
[Document Requests Nos. 73 – 76, 130 – 134]; (3) any complaints or communications made by
parents or students about Defendants [Document Requests Nos. 22, 24 – 25]; (4) any complaints or
communications made by parents or students about other teachers employed by Defendants
[Document Requests Nos. 30 - 31, 36 – 37, 41 – 42, 46 – 47, 51 – 52, 56 – 57, 76, 84 – 85]; (5)
certain students’ behavioral issues [Document Requests Nos. 7, 149]; and (6) any witness
statements made about Plaintiff or regarding Plaintiff’s role as a teacher employed by Defendants
[Document Requests Nos. 9, 151].
According to Plaintiff, in response to these (and possibly other) document requests,
Defendants produced a number of documents in which they redacted the names of parents and
students. Plaintiff seeks an Order directing Defendants to “disclose student and parent names in all
documents related to this litigation and the claims therein.” ECF No. 68-1 at 5. 1 Plaintiff argues
that without such information she cannot adequately pursue her claims in this case. Plaintiff states
that she is unable to adequately investigate and defend against Defendants’ affirmative defense
that Plaintiff was terminated for cause because she cannot, for example, verify the veracity of
1

Plaintiff alternatively requests that the Court order Defendants to “obtain parent/student consent to provide their
unredacted names in discovery documents.” ECF No. 68-1 at 5. The Court, however, cannot compel these nonparties
to provide such consent.
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information or explore the motives of the persons who made the statements contained in the
records.
Defendants oppose Plaintiff’s motion. They contend that the disclosure of the names of
parents and students would violate the Family Educational Rights and Privacy Act (“FERPA”), 20
U.S.C. § 1232g., and state law, N.J.A.C. 6A:32-7.5(g) (expressly incorporating the requirements
of FERPA). Under FERPA and its New Jersey counterpart, educational institutions are obligated
to maintain the confidentiality of certain records. As one court in this District recently explained,
[b]oth New Jersey and federal law obligate schools to protect the privacy of their
students’ records. See 20 U.S.C. § l232g; N.J.S.A. § 18A:36-19. Under New
Jersey’s law, “student record” is broadly defined as “information related to an
individual student gathered within or outside the school district and maintained
within the school district.” N.J.A.C § 6A:32-2.1. Access to student records is
limited to authorized organizations or individuals; generally, “[p]ersons outside the
school” are authorized to view confidential student records if the students' parents
consent (and consent to any third-party disclosure) or a court orders it. Id. at
7.5(e)(14),(15). Similarly, under [FERPA], federal law prohibits the disclosure of
an “educational record” that contains information “directly related to a student”,
including her name, address, or “other information that, alone or in combination, is
linked or linkable to a specific student that would allow a reasonable person in the
school community, who does not have personal knowledge of the relevant
circumstances, to identify the student with reasonable certainty” to an unauthorized
individual. See generally 20 U.S.C. § l232g; 34 C.F.R. 99.3. FERPA likewise
allows for the disclosure of such records with parental consent or as a result of a
court order. 20 U.S.C. § 1232(g)(b)(2).
M.A. v. Jersey City Bd. of Educ., No. 14-6667, 2016 WL 7477760, at *10 (D.N.J. Dec. 29, 2016).
Plaintiff argues that neither FERPA nor New Jersey law prohibits disclosure of the
information she seeks in this case. Indeed, it is well-established that FERPA does not create an
evidentiary privilege. 2 Many courts have held that records protected by FERPA are not

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Likewise, state regulations governing the confidentiality of student records do not create such a privilege. As the
Third Circuit has explained with regard to state law confidentiality laws generally,
discovery disputes in federal courts are governed by federal law, especially the Federal Rules of
Civil Procedure and the Federal Rules of Evidence[.] [T]he state statutory confidentiality provisions
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necessarily exempt from discovery in the context of civil litigation. See, e.g., Lei Ke v. Drexel
Univ., No. 11-6708, 2014 WL 1100179, at *5 (E.D. Pa. Mar. 20, 2014) (“FERPA does not create a
privilege”); Jackson v. Willoughby Eastlake Sch. Dist., No. 16-3100, 2018 WL 1468666, at *2
(N.D. Ohio Mar. 23, 2018) (“[R]ecords that are considered protected under a statute are not
necessarily privileged for discovery purposes, and FERPA does not provide such a
privilege.”)(citing cases). See also Pearson v. Miller, 211 F.3d 57, 68 (3d Cir. 2000) (“Statutory
provisions providing for duties of confidentiality do not automatically imply the creation of
evidentiary privileges binding on courts.”)
Nevertheless, given the confidentiality protections afforded these records, a party seeking
disclosure of education records protected by FERPA bears “a significantly heavier burden ... to
justify disclosure than exists with respect to discovery of other kinds of information, such as
business records.” Furey v. Wolfe, No. 10-1820, 2011 WL 597038, at *7 (E.D. Pa. Feb. 18, 2011)
(alteration in original). As such, “federal courts have allowed the disclosure of protected education
records in circumstances where the interests of the party seeking the records outweighs the
students’ privacy interest.” Id. (citing cases).
At this juncture, the Court finds it necessary to clarify which documents are the subject of
this motion. In her motion, Plaintiff asks the Court to modify the Discovery Confidentiality Order
and compel the broad disclosure of “student and parent names in all documents related to this
litigation and the claims therein.” ECF No. 68-1 at 5 (emphasis added). However, the only
categories of documents discussed substantively in Plaintiff’s brief are (1) complaints made by
that have been invoked ... do not directly govern the present dispute. Only to the extent that federal
law may recognize the force of those provisions are they relevant here. The ultimate issue is whether
the discovery sought is permitted as a matter of federal law.
Pearson v. Miller, 211 F.3d 57, 61 (3d Cir. 2000). As such, and given the fact that (1) the parties arguments generally
center on FERPA and (2) the state regulation at issue expressly incorporates the requirements of FERPA, the Court
bases its analysis here on the provisions of FERPA.
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students and/or parents about Plaintiff; and (2) “witness statements” or incident reports in which
the names of students and/or parents appear. See, e.g., ECF No. 68-1 at 13 (“The majority of the
records Defendants have redacted are in response to Plaintiff’s requests for complaints and witness
statements or incident reports involving allegations in Plaintiff’s pleadings.”) As such, the Court
considers Plaintiff’s motion as being applicable only to such documents.
The protections of FERPA extends to “education records.” The statute defines “education
records” as “those records, files, documents, and other materials which (i) contain information
directly related to a student; and (ii) are maintained by an educational agency or institution or by a
person acting for such agency or institution.” 20 U.S.C. §1232g(a)(4)(A). Several other district
courts have found that records similar to those sought by Plaintiff here are not education records
subject to FERPA. For example, in Briggs v. Bd. of Trustees Columbus State Cmty. Coll., No.
08-644, 2009 WL 2047899, at *5 (S.D. Ohio July 8, 2009), the court held that student complaints
of sexual harassment by a professor were not education records. The Briggs court relied on Ellis v.
Cleveland Municipal School District, 309 F. Supp. 2d 1019 (N.D. Oh. 2004), which involved an
action against a school district regarding the use of corporal punishment by a teacher. The plaintiff
in Ellis sought discovery related to incident reports, student and employee witness statements, and
disciplinary records of certain teachers, but the school district objected to the discovery on the
basis that the information was protected by FERPA. The Ellis court concluded that FERPA was
not applicable because the requested documents contained information that directly related to
teachers and only tangentially related to students. The court stated that “[w]hile these records
clearly involve students as alleged victims and witnesses, the records themselves are directly
related to the activities and behaviors of the teachers themselves and are therefore not governed by
FERPA.” Id.
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In Wallace v. Cranbrook Educ. Cmty., No. 05-73446, 2006 WL 2796135 (E.D. Mich. Sept.
27, 2006), a former school maintenance worker brought an action for unlawful termination after
being terminated “in primary part on anonymous statements given by students” alleging improper
sexual behavior toward students. Id. at *1. During discovery, the defendant provided the plaintiff
with copies of the students’ statements with the students’ names and addresses redacted. The court
granted a motion to compel disclosure of the students’ names, rejecting an argument that FERPA
prohibited such disclosure. Id. at *4-5. The court held that the investigatory notes and the student
statements did not constitute education records because they did not relate directly to the students
and the information fell within one of FERPA’s exceptions relating to employment records. See
also Cherry v. Clark Cty. Sch. Dist., No. 11-1783, 2012 WL 4361101, at *6 (D. Nev. Sept. 21,
2012) (compelling disclosure of the identity of parents who made complaints about the behavior of
another student in the classroom). But see Rhea v. Dist. Bd. of Tr. of Santa Fe Coll., 109 So.3d 851,
857 (Fla. Dist. Ct. App. 2013) (holding that a student’s email complaining of a teacher’s
“inappropriate classroom behavior, his humiliating remarks to the students, and his unorthodox
teaching methodologies” was a record that “directly related to” the student and was therefore an
“education record” under FERPA).
Arguably, based on the reasoning in the federal cases cited above, many of the records
sought here are not education records under FERPA because they do not “directly relate[]” to
students, but, rather, relate to Plaintiff in the context of her employment as a teacher with the
school district. However, regardless of whether the documents in question are “education records”
under FERPA, the Court finds disclosure of the unredacted records is appropriate here.
Pursuant to Federal Rule of Civil Procedure 26,

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[p]arties may obtain discovery regarding any nonprivileged matter that is relevant
to any party’s claim or defense and proportional to the needs of the case,
considering the importance of the issues at stake in the action, the amount in
controversy, the parties' relative access to relevant information, the parties'
resources, the importance of the discovery in resolving the issues, and whether the
burden or expense of the proposed discovery outweighs its likely benefit.
Fed. R. Civ. P. 26. There can be no dispute that records that are the subject of this motion are
relevant to the claims and defenses in this case. Among Plaintiff’s claims is the assertion that she
was unlawfully terminated from her employment on the basis of her race, religious beliefs and
national origin. Defendants have asserted an affirmative defense that alleges that Defendants had
“legitimate and lawful reasons for their decision not to renew Plaintiff’s contract.” ECF No. 66 at ¶
84. Indeed, Defendants state that “decisions” regarding the nonrenewal of Plaintiff’s contract were
made “based on feedback received from parents and students.” ECF No. 70 at 11. As such, this
feedback is directly relevant to the claims and defenses asserted in this case.
As noted above, federal courts have allowed the disclosure of otherwise protected
education records in circumstances where the interests of the party seeking the records outweighs
the students’ privacy interest. See, e.g., Ragusa v. Malverne Union Free Sch. Dist., 549 F.Supp.2d
288, 293–94 (E.D.N.Y. 2008) (teacher’s need for disclosure in discrimination action outweighed
student’s privacy interest); Nastasia v. New Fairfield Sch. Distr., 2006 WL 1699599, *1–2 (D.
Conn. June 19, 2006) (requiring disclosure of identity of student who made complaint of teacher
misconduct); Davids v. Cedar Falls Cmty. Sch., 1998 WL 34112767, *3 (N.D. Iowa Oct. 28, 1998)
(plaintiff’s need for disclosure of records to prove allegation that school engaged in disparate
discipline of non-minority and minority students outweighed students’ privacy interests).
Defendants contend that it is sufficient that Plaintiff has been provided copies of this “feedback”
with the names of the students/parents redacted. However, the names are an essential part of each
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of the documents and are relevant here. Without them Plaintiff cannot fully evaluate the evidence
in the context of the claims and defenses in this lawsuit.
In moving for disclosure of the names, Plaintiff states that privacy concerns can be
alleviate in large part by designating the unredacted names as “Attorney’s Eyes Only” pursuant to
the Discovery Confidentiality Order. The Court agrees. Designated as such, the names may be
disclosed only to counsel for Plaintiff. Counsel may give advice based on his evaluation of the
material, but he may not reveal the content of the material. ECF No. 56 at ¶ 3-4.
On balance, Plaintiff’s need for full disclosure of the records outweighs the privacy
interests here, particularly in light of the fact that Plaintiff seeks an “Attorney’s Eyes Only”
production. Consequently, the Court will order the production of unredacted copies of (1)
complaints made by students and/or parents about Plaintiff; and (2) “witness statements” or
incident reports in which the names of students and/or parents appear. The unredacted names shall
be designated “Attorney’s Eyes Only.” To the extent that Plaintiff sought unredacted versions of
any other records, Plaintiff simply has not made any showing to warrant such relief.
B. Index of ESI Documents
In September 2017, Defendants produced to Plaintiff electronically-stored information
(“ESI”) consisting of 2,945 documents totaling approximately 6,000 pages. Plaintiff moves for an
Order compelling Defendants to produce an index that identifies by Bates number the document
request to which each document responds.
According to Defendant and not disputed by Plaintiff, the ESI production at issue was a
supplemental response to Plaintiff’s 172 document requests and was made in accordance with
objections and responses previously served upon Plaintiff. See, e.g., ECF No. 78-2, 78-3. The
record shows that a third party ESI vendor was used to collect the ESI at issue by custodian and in
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the manner in which the ESI was kept in the ordinary course of business. The ESI was produced to
Plaintiff in electronic form grouped by custodian. See ECF No. 79-3.
Federal Rule of Civil Procedure 34(b)(2)(E)(i) requires a party to produce ESI in the
manner in which it kept in the ordinary course of business. It appears Defendants have done so
here. See id. Although not required by the Rules, Defendants have also provided Plaintiff with a
searchable electronic index of the documents produced. The Court finds that Defendants have
complied with the relevant Federal Rules of Civil Procedure and no further response is necessary.
C. Personnel Records/Complaints
Plaintiff’s demands for production included requests for the personnel files of Defendants
Steffner, Cooley, and Lucas, in addition to documents relating to any complaints made by a parent,
teacher, or student against these individuals. Plaintiff also requested similar documents relating to
Plaintiff’s former supervisor, Robert Zywicki, who is not a party to this case. Defendants have
objected on the grounds of relevance and privacy. Plaintiff moves to compel production of these
records.
A party seeking to compel discovery bears the initial “burden of showing that the
information sought is relevant to the subject matter of the action.” Arena v. RiverSource Life Ins.
Co., No. 16-5063, 2017 WL 6513056, at *2 (D.N.J. Dec. 19, 2017). With respect to the records
relating to Steffner, Cooley, and Lucas, Plaintiff states only that the “files could certainly contain
relevant evidence” and, in counsel’s experience, “personal files of named parties are almost
always produced.” ECF No. 78-1 at 2. This is insufficient to meet the burden of showing
relevance, particularly given the privacy interests implicated by the sensitive information
generally contained in a personnel file. Given the nature of the material sought, the Court expects a
clear showing of relevance to permit the discovery, a showing Plaintiff has not made.
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With regard to Zywicki, a non-party, Plaintiff seeks his personnel file, records of any
disciplinary action taken against him, and records relating to any complaints against him made by
a parent, teacher or student. Plaintiff states that, as her supervisor, Zywicki “admonish[ed]
[Plaintiff] about her addressing certain issues because of her ethnicity and religion.” ECF No. 78-7
at 4. In a purely conclusory fashion with no further support, Plaintiff contends that “[w]hat, if
anything, was done about that” as well as the reasons for Zywicki’s “abrupt termination” are
“certainly relevant” to this action. Id. Again, given the personal nature of the information Plaintiff
seeks regarding a non-party, Plaintiff’s succinct, conclusory assertion of relevance is insufficient
to warrant the Court compelling production of the records. Furthermore, Plaintiff has stated her
intention to take the deposition of Zywicki, ECF No. 79-4, through which Plaintiff could obtain the
information sought.
D. Records Regarding Comparators
Plaintiff moves to compel responses to the following:
Request No. 58
Provide a copy of any complaint brought against any of the Defendants, other than
the plaintiffs, in any court or before any administrative agency that alleged
discrimination in the past 10 years.
Request No. 61
Provide the personnel files for all teachers whose contracts were not renewed
within the first three years of employment (this request is seeking documents for
the past 10 years).
Request No. 152
Provide copies of all observations and evaluations of teacher Semira Markos during
her employment with the Defendants.
Request No. 153
Provide copies of all observations and evaluations of teacher Anicel Rachel during
her employment with the Defendants.

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In response, Defendants objected to Request No. 58 as overbroad and to No. 61 on similar
grounds as well as privacy concerns. With respect to No. 152 and 153, Defendants state that
Plaintiff was provided with employment files including observations and evaluations of all
non-tenured teachers, redacted to obscure their identity, who were first employed at any time after
Plaintiff was first offered a teaching position. Included within that response are the files of
Seminra Markos and Anicel Rachel as well as a third teacher for whom Plaintiff requested records
(Request No. 154) but whose records are not the subject of the instant motion.
In support of her motion, Plaintiff succinctly states, with no further explanation, that the
information sought by Request No. 58 “could lead to admissible and probative evidence.” ECF
No. 78-5 at 3. This is not sufficient to carry Plaintiff’s burden of establishing the relevance of the
material sought, particularly given its breadth.
As to the remaining three requests, Plaintiff simply states that “[a] comparison of [the other
teachers’] evaluations and personnel files with Plaintiff could indicate that they were treated
differently, and better, than Plaintiff even though they were similarly situated, other than their
religious and ethnic background.” Id. Plaintiff, however, appears to have been provided with the
necessary materials and does not explain why the records that have already been produced are
insufficient for her purposes. Plaintiff can perform the comparison she seeks with the records
provided. Consequently, Plaintiff’s motion is denied as to these document requests.
E. Student Records
In Plaintiff’s Third Request for the Production of documents, Plaintiff seeks “[t]he
complete student file, including all IEPs and/or 504 Plans for” three students. Defendants objected
on the grounds of privacy and produced no documents in response. Plaintiff moves to compel
responses, noting that “[e]ach of these [t]hree students and/or their parents made complaints about
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Plaintiff which figured prominently in Defendants’ ostensible reasons for not renewing Plaintiff’s
employment.” ECF No. 78-7 at 3. As such, Plaintiff contends, “[w]hat other complaints these
students made about other teachers, what their various diagnoses were, what limitations were
placed upon them, all could be relevant in assessing whether the stated reasons for Plaintiff’s
non-renewal were pretextual.” Id. Plaintiff contends these records should be produced because
“the totality” of her interactions with these students and their educational experience, “including
those students’ interactions with other teachers,” is relevant.
Here, Plaintiff is expressly seeking these students’ individualized education programs
(“IEP”) and/or Section 504 Plans. Pursuant to federal statute, an IEP is a “written statement for
each child with a disability” that includes, among other things, information regarding a child’s
present levels of academic achievement and functional performance, educational goals and the
child’s progress toward meeting those goals, and special education services provided to the child.
20 U.S.C. § 1414. A Section 504 Plan similarly contains information about how the school will
provide equal access for children with disabilities. See 29 U.S.C. § 701 et seq. Thus, as Defendants
point out, an IEP and 504 Plan contain the most private and sensitive information about a student.
As discussed in detail above, while protected education records may be subject to
discovery in a civil action, the burden is on the party seeking the records to show that their need for
the information outweighs any privacy interest on the part of the student. Here, Plaintiff has not
made that showing. Although Plaintiff argues that complaints against other teachers made by these
students or their parents may be relevant to the issues in this case, the disputed document requests
are not seeking such complaints. Rather, they broadly seek sensitive education records, and
Plaintiff has not demonstrated the relevancy of or the need for such records.

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F. Conclusion and Order
The Court having carefully considered the parties submissions, and for the reasons stated
above,
IT IS on this 23rd day of May, 2018,
ORDERED that Plaintiff’s motion for judicial relief [ECF No. 68] is granted in part and
denied in part; and it is further
ORDERED that Plaintiff’s motion to compel [ECF No. 78] is denied; and it is further
ORDERED that no later than 30 days from the date of this Order Defendants are directed
to produce unredacted versions of documents previously produced that relate to (1) complaints
made by students and/or parents about Plaintiff; and (2) “witness statements” or incident reports in
which the names students and/or parents appear; and it is further
ORDERED that the unredacted names may be designated “Attorneys Eyes Only”
pursuant to the Discovery Confidentiality Order; and it is further
ORDERED that counsel are directed to submit a joint status report to the Court no later
than June 15, 2018.

s/ Douglas E. Arpert
DOUGLAS E. ARPERT
UNITED STATES MAGISTRATE JUDGE

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